ACLU Files New Challenge to Government’s Secret Filings in NSA Case

June 14, 2007 12:00 am

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CINCINNATI – The American Civil Liberties Union today filed a legal motion to unseal secret materials filed by the government in an ongoing challenge to the Bush administration’s warrantless surveillance program.

The Justice Department filed the classified materials last Friday with the U.S. Court of Appeals for the Sixth Circuit, which is currently reviewing the legality of the National Security Agency’s warrantless surveillance program. A federal district court previously ruled that the program is unconstitutional and violates the Foreign Intelligence Surveillance Act (FISA).

“The government wants to ensure that its defense of the NSA’s activities is never tested in an adversarial process or made available to the public,” said Jameel Jaffer, Director of the ACLU’s National Security Project and the lead attorney in ACLU v. NSA. “But it would be completely improper – not to mention unprecedented – for important constitutional issues to be decided on the basis of secret arguments.”

Friday’s filing marks the third time the government has filed secret legal papers with the appeals court in this case. The government has said almost nothing about the papers’ contents but the ACLU said it believes the classified materials pertain to developments in the FISA court. The Justice Department announced on January 17 that, as of January 11, 2007, certain surveillance that had previously been conducted without judicial oversight would become subject to the oversight of the FISA court. When it made this announcement, the government filed secret papers to provide the Sixth Circuit with more detail about this new arrangement. The government’s second secret filing came approximately 90 days after its first one; its third secret filing came approximately 60 days after its second one.

The Bush administration is seeking to dismiss the ACLU challenge as “moot” because the NSA’s surveillance activities are now subject to oversight by the FISA court. The ACLU has opposed this effort, however, because the president is still claiming the “inherent authority” to engage in warrantless surveillance. The ACLU has noted that nothing would stop the president from resuming illegal surveillance if the case is dismissed.

Also today, the ACLU filed legal papers advising the court of a recent ruling by the Fourth Circuit Court of Appeals in the case of Al-Marri v. Wright. In that case, the court rejected the Bush administration’s argument that, in passing the 2001 Authorization for Use of Military Force, Congress had authorized the president to indefinitely imprison – without charge or process – suspected terrorists apprehended inside the United States. The court also found that the president’s authority over the battlefield does not extend to eliminating constitutional protections for civilians on U.S. soil. The ACLU noted that the Fourth Circuit had rejected some of the same claims that the government is making in the ACLU v. NSA case.

“The courts have repeatedly held that the threat of terrorism does not justify abandoning the rule of law, and does not grant the president authority to ignore laws passed by Congress or constitutional rights,” said ACLU attorney Melissa Goodman, who is co-counsel in ACLU v. NSA. “Judicial oversight is key to preventing innocent Americans from getting caught in a web of unchecked government spying.”

On June 7, the ACLU’s Jaffer appeared before a House Judiciary subcommittee to urge Congress to subpoena all documents relating to the NSA surveillance program, including the secret orders issued by the FISA court. In his written testimony, Jaffer wrote that “the administration’s defense of the NSA’s activities . . . presents a challenge to the very foundations of constitutional government.” The Senate Judiciary Committee is set to vote soon on whether to authorize such subpoenas.

Attorneys for the ACLU in this case are Jaffer, Goodman and Alexa Kolbi-Molinas of the national ACLU; Michael Steinberg and Kary Moss of the ACLU of Michigan; and Randy Gainer of Seattle law firm Davis Wright Tremaine. The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, Director of the NSA.

Today’s motion to unseal is online at:

The supplement brief advising the court of Al-Marri v. Wright is online at:

More information on ACLU v. NSA is online at:

Jaffer’s testimony before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties is online at:

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